separacion bienes o gananciales

Separation of property or community property?

Before getting married, it is advisable for the couple to talk naturally and calmly about the economic regime they will adopt during their marriage. Some guidelines to keep in mind:

The default regime applied in Spain (stated law) is that of the legal community of property and implies that all the profits obtained during the marriage, whether they come from private property (e.g. rent of a private dwelling) or from common property (e.g. salaries), will belong to both spouses; also, that the debts generated during the marriage, may be claimed indistinctly to either spouse.

On the contrary, in the regime of separation of property, each spouse retains the ownership and administration of the property and profits that each spouse acquires or generates before and after the marriage.

The separation of property regime can be agreed before the marriage, but also afterwards. In order to apply this regime, Marriage Contracts must be executed before a notary. If it is agreed after the celebration of the marriage, it is advisable to carry out the corresponding liquidation of the previous community of property.

In both systems, the assets owned by each partner before the marriage are still private, but if in case of community of property, the benefits of all the assets (private and community property) are community property, that is to say, common, in the case of separation of assets, the benefits are for the owner of each asset that produces them.

In the case of donations or inheritances, they are always private assets regardless of the economic regime chosen, however the owner must be able to prove that origin.

It is important to bear in mind that in both regimes the so-called ‘reimbursement rights’ can be generated, which are those contributions that one of the spouses has made with private assets, and that can be claimed between them at the moment of the liquidation of the Society.

The rights of reimbursement can generate problems at the time of liquidation of the community property, but also in the regime of separation of property. To cite one of the most common cases, if one of the spouses is the privative owner of the family domicile, but the other one has made contributions for the payment of the mortgage, these contributions can be claimed from the other spouse as long as he/she can demonstrate that he/she has paid them with privative money.

In some Communities such as Catalonia, the Basque Country, Aragon, the Valencian Community, the Balearic Islands and Navarre, other systems are applied by default.

In Catalonia, Valencian Community, Balearic Islands and Aragon the regime of separation of property is applied by default so that, if the contracting parties do not grant marital contracts submitting to the legal regime of community property, the regime of absolute separation of property will be the one that governs their marriage.



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